Pot case off to federal court

March 09, 2004

Susan Bacon, Steamboat Pilot & Today

A case involving contempt citations for officers who seized medicinal marijuana from a Hayden man last fall will be heard in federal court, a judge ruled Tuesday.

In his order, U.S. District Court Judge Walker Miller emphasized that the 'threshold question' before him was whether the case should go to a federal court.

'After review of the evidence and arguments, I conclude that they should be,' he wrote.

The bigger question of whether the officers should be held in contempt of court because they did not return marijuana as ordered by a state judge will be decided by Walker in the coming months.

The case has highlighted conflicting state and federal laws. According to a voter-approved law, Colorado allows use of marijuana for medicinal purposes. Under federal rules, the drug is illegal.

Hayden resident Don Nord, who is a registered medicinal marijuana user, went to court in November to get marijuana and growing equipment that was seized from him Oct. 14. After Routt County Judge James Garrecht ordered the officers to return the items, the growing equipment was returned, but the marijuana was not.

At Nord's request, Garrecht held the officers in contempt of court, and the U.S. Attorney's Office entered the case, asking the case be heard in a federal court.

One of the officers held in contempt is a U.S. Drug Enforcement Administration agent and the others are members of the federal task force GRAMNET, the Grand, Routt and Moffat Narcotics Enforcement Team.

Miller agreed with the U.S. Attorney's Office's arguments on why the case should be heard in a federal court.

In his order, he said that it is 'well established' that cases involving contempt citations against federal officials for not following a state court order can be removed to a federal court.

The U.S. Attorney's Office had to show that the officers involved were federal officers or acting under a federal officer, that their action followed federal rules and that they had a 'colorable federal defense.' All of those requirements were met, Miller wrote.

Miller further said that Nord's arguments to keep the case in state court, which were made through attorney Kristopher Hammond, were 'misdirected' and confused the issue. The argument that the removal was filed too late does not hold, Miller wrote.

Nord's argument that marijuana may be legally possessed with a doctor's order has not yet been decided by the U.S. Supreme Court, Miller said, but the court said in a 2001 decision that five justices might rule that medical necessity is not a defense.

The U.S. Attorney's Office had no comment on Miller's ruling.

Hammond said that the ruling 'obviously (is) not what we wanted.' Driving to Denver will be difficult, he said. However, he said, Miller should rule how he thinks the state court would have ruled and apply the same laws.

'We want the federal judge to tell GRAMNET that they have to obey the law,' Hammond said.

Nord or anyone who wants to oppose the motion to dismiss the contempt charges should file a response by March 29, with the U.S. Attorney's Office responding by April 4.



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